Appeal from the Circuit Court of Cook County; the Hon. Lester
A. Bonaguro, Judge, presiding.
PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 21, 1985.
Defendant Edward Ross was convicted of murder in a bench trial for the November 4, 1981, shooting of his ex-wife Betty and was sentenced to 30 years' imprisonment. Defendant appeals his conviction.
In 1981, defendant was 49 years old and his ex-wife Betty was 47 years old. Defendant and his ex-wife were twice divorced, having been married in 1973, divorced and remarried in 1977 and divorced again in 1978. They continued to see each other frequently after the second divorce.
In October of 1981, Betty traveled to San Francisco on business, stopping on the way back in Las Vegas, where she met Jana Nuter, her daughter by a previous marriage. Betty returned to Chicago on the morning of November 4, and was met at the airport by defendant, who drove her to his apartment in Des Plaines. After arriving from the airport, Betty and defendant ate and went to bed, where they talked and engaged in sexual intercourse. Defendant testified that he got out of bed and went to the bathroom to put on his pajamas, the bedroom being completely dark. He returned to the bedroom and lay down on the bed. As he lay awake, he heard an "explosion" and rolled across Betty's side of the bed and ran into the hallway, where he heard another explosion. He returned to the bedroom, turned on a closet light and saw Betty lying near the bed with a gunshot wound in her head. Defendant took an oxygen tank from his side of the bed and placed the mask on Betty's face. He then telephoned for help and opened the apartment door.
Officer Winek of the Cook County sheriff's police testified that on November 4, 1981, between 9 and 9:08 a.m. the sheriff's office in Des Plaines received a telephone call reporting a shooting at defendant's apartment. Officer Winek, his partner Bryant and three paramedics went to the apartment, where they found the door open. Upon entering the master bedroom, Winek observed defendant kneeling over Betty and attempting to administer oxygen. When defendant saw Winek, he said, "Help her. Help her." Winek handcuffed defendant and the paramedics began to administer aid to Betty. Betty was taken to Lutheran General Hospital, where she died later that day.
Officer Winek was the only witness who saw the master bedroom before the paramedics entered with their equipment and moved Betty. When Winek first entered the bedroom, Betty was lying on her back on the floor near her side of the bed. She had a bullet wound in her left temple. A revolver was on the floor between Betty and the bed, approximately two feet to Betty's right. After Winek handcuffed defendant, the paramedics entered the bedroom. One removed the shade from the window and the others moved Betty toward the foot of the bed and began to administer first aid. Winek took defendant to the second bedroom, where he noticed that defendant had been shot in the inside of his upper right thigh.
Evidence technicians arrived at approximately 9:10 a.m. Although they instructed the police officers and paramedics not to disturb the scene, numerous objects had already been moved by the paramedics in the course of treating Betty. Photographs were taken of the room. The technicians observed a purse filled with blood on defendant's side of the bed and a revolver on the floor. The purse had been moved by the paramedics. The gun, upon which no fingerprints were found, had blood on both sides of its frame.
Four bullets were recovered from the room. One was recovered from Betty's head, one from the floor beneath Betty's side of the bed, one from the carpeting near the head of Betty's side of the bed, and one from the top of the sheets on the surface of the bed. This last bullet was stained with a red substance and was found near the head of the bed. A large bloodstain was present at the head of Betty's side of the bed. This stain was smeared toward the edge of the bed where Betty was found. Bloodstains were also observed in other places in the bedroom. Samples of these were taken, but because defendant and Betty shared the same ABO blood type, most of the samples proved inadequate to determine the source of the stains. Erethrocyte acid phosphatase (EAP) testing indicated that the large stain on Betty's side of the bed was made by her blood, that the stain on defendant's side of the bed was his blood, and that the large quantity of blood found in Betty's purse was hers. The autopsy revealed that Betty's death had been caused by a contact gunshot wound to the left temple.
A firearms expert testified that all four bullets recovered from the scene had been fired from the gun found in the bedroom. This gun belonged to defendant and had been kept loaded in a drawer of the nightstand at defendant's side of the bed. An examination of defendant's pajama pants showed that he had been shot from a distance of less than six inches, but greater than contact. The bullet entered the front of his right thigh and exited at the rear.
Evidence introduced at trial revealed that Betty had experienced emotional problems several months before her death, but had been successfully treated for them; that the relationship between Betty and defendant was often troubled; that defendant was a gun enthusiast and an experienced marksman, and at the time of Betty's death owned several guns besides the one which killed Betty; that defendant denied shooting Betty when questioned by police immediately after the shooting; and that Betty did not like guns and was inexperienced in their use.
At trial, defendant maintained that Betty had committed suicide. He was tried before the bench, convicted of murder and sentenced to 30 years' imprisonment.
• 1 Defendant first contends that he was denied due process of law due to the State's failure to preserve material evidence. It is clear that the State has the duty to preserve and disclose possible exculpatory evidence to the accused in a criminal case. (People v. McDowell (1984), 121 Ill. App.3d 491, 496-97, 459 N.E.2d 1018.) This duty to preserve and disclose evidence focuses on the fairness of the trial process. (121 Ill. App.3d 491, 497.) We must therefore determine whether the State has breached this duty and, if so, what effect this breach would have on the fairness of the trial process.
Defendant first argues that the State withheld material evidence from him by failing to test his and Betty's hands for gunshot residue. However, a police investigator testified that, due to the contamination of Betty's hands by the presence of adhesive tape applied by the paramedics and by blood, and because defendant had been taken to the hospital, the investigator believed that reliable gunshot residue samples could not have been obtained from the hands of either person. Under these circumstances, we cannot ...